Texas Medical Licensing Law Bloghttp://www.txmedicallicensinglaw.com/
enCopyright 2017Mon, 07 Aug 2017 13:26:07 -0600Mon, 07 Aug 2017 13:26:07 -0600http://www.movabletype.orghttp://blogs.law.harvard.edu/tech/rssSubscribe with My Yahoo!Subscribe with NewsGatorSubscribe with My AOLSubscribe with BloglinesSubscribe with NetvibesSubscribe with GoogleSubscribe with PageflakesThe New Face of Telemedicine in Texas<p>One of the most important healthcare bills to come out of the 85<sup>th</sup> regular Texas legislative session is Senate Bill 1107. This bill, which has been signed by Governor Abbott, resets the playing field for telemedicine and brings Texas law more in line with other states.</p>
<p>Previously, the scope of telemedicine in Texas had been restricted by statutes and Texas Medical Board rules which required a practitioner who wanted to treat a patient via telemedicine to first establish a valid practitioner-patient relationship through a face-to-face encounter. There were provisions allowing a practitioner to avoid an initial face-to-face meeting through the use of a presenter who was onsite with the patient, however, in practice this exemption was unwieldy at best and an insurmountable barrier for many telemedicine providers. These restrictions were contentious and the source of repeated litigation, most notably the series of successful state and federal lawsuits filed by Teladoc against the Texas Medical Board.</p>
<p>Senate Bill 1107 bars the Texas Medical Board and other state agencies from requiring a face-to-face encounter in order to establish a valid practitioner-patient relationship. Instead, it provides a valid practitioner-patient relationship exists if:</p>
<p style="margin-left:.5in;text-indent:-.25in;">&middot;<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The practitioner has a preexisting practitioner-patient relationship;</p>
<p style="margin-left:.5in;text-indent:-.25in;">&middot;<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The practitioner is communicating with the patient pursuant to a call coverage agreement; or</p>
<p style="margin-left:.5in;text-indent:-.25in;">&middot;<span style="font-variant-numeric: normal; font-stretch: normal; font-size: 7pt; line-height: normal;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span>The practitioner provides telemedicine services through one of the acceptable methods set out elsewhere in the bill.</p>
<p>To be acceptable, a practitioner treating a patient through telemedicine must have access to &ldquo;relevant clinical information,&rdquo; such as relevant medical records or test results, and must send the patient&rsquo;s primary care provider a report on the encounter within seventy-two hours. The law also makes clear the same standard of care applies to a telemedicine encounter as it would to a traditional face-to-face visit. Conversely, state agencies cannot adopt rules creating a higher standard of care for telemedicine.</p>
<p>One of main limitations of the prior law were the restrictions on a practitioner&rsquo;s ability to prescribe medications through telemedicine. The new law directs the Texas Medical Board, Texas Board of Nursing, Texas Physician Assistant Board, and Texas State Board of Pharmacy to jointly adopt rules on what constitutes a valid prescription in the context of telemedicine. Importantly, it also ties these agencies hands by stating such rules must still permit the establishment of a valid practitioner-patient relationship as provided by the rest of the bill. It is still to be seen how this is implemented by the Medical Board and other agencies and whether the forthcoming rules will create unnecessary burdens to prescribing through telemedicine.</p>
<p>With twenty-eight million residents, many of which are in rural communities far from specialist or even regular primary care, Texas has always been a promising environment for telemedicine. Senate Bill 1007 should go a long way to opening Texas to telemedicine and its touted benefits of greater access to care and lower costs. Still, practitioners should remain aware the full landscape for telemedicine in Texas will not become apparent until the Texas Medical Board and other state agencies adopt rules outlining specific requirements, particularly on prescribing. Additionally, federal law, such as the Ryan-Haight Act, can apply as can another state&rsquo;s law if the telemedicine encounter is occurring across state lines. Speaking with experienced legal counsel from early date is always prudent.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/5iSRdLmerGI" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/5iSRdLmerGI/
http://www.txmedicallicensinglaw.com/2017/08/articles/texas-medical-board/the-new-face-of-telemedicine-in-texas/ Texas Medical BoardMon, 07 Aug 2017 13:14:19 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2017/08/articles/texas-medical-board/the-new-face-of-telemedicine-in-texas/Governor Abbott Appoints Six New Members to the Texas Medical Board<p>Since the start of the new year, Governor Abbott has appointed six new members to the Texas Medical Board. The new members, whose terms are set to expire in April 2021, include five physicians and one public member. One of the new appointees, Sherif Zaafran, M.D., has also been named the Board&rsquo;s new president. Dr. Zaafran, an anesthesiologist, takes over from Michael Arambula, M.D., Pharm.D., who has severed as the Board&rsquo;s president for the last several years.</p>
<p>With such a sizable influx of new members and the appointment of a new Board president, it will be interesting to see whether there are any shifts in Board policy or disciplinary priorities. Some of the Medical Board&rsquo;s most prominent initiatives over the last several years have been its ongoing legal battle over telemedicine, the regulation of medspas and non-surgical cosmetic procedures, and the continued crackdown on what the Board views as the non-therapeutic prescribing of pain medications. Whether these will continue to be a primary focus waits to be seen.</p>
<p>On a more individual level, the new Board members have been regularly appearing at informal settlement conferences. Our firm&rsquo;s experience with the new appointees has been largely positive in this respect as the new members have been generally receptive to the responding physician&rsquo;s arguments and attentive to the details of each case even if they do not always reach the decision we are advocating for on behalf of our clients. I am hopeful this trend continues.</p>
<p>As of the date of this post, the Board is also still searching for a new Executive Director. The prior Executive Director, Mari Robinson, had a lengthy tenure with the Board and always appeared to play a strong role in the development and implementation of Board policy. Since Ms. Robinson&rsquo;s departure last year, the Board&rsquo;s General Counsel, Scott Freshour, has served as the Interim Executive Director. I anticipate any changes in the Board&rsquo;s broader policies will begin to take shape once they have selected Ms. Robinson&rsquo;s permanent successor.&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/Ds3SPLV_5OY" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/Ds3SPLV_5OY/
http://www.txmedicallicensinglaw.com/2017/05/articles/texas-medical-board/governor-abbott-appoints-six-new-members-to-the-texas-medical-board/ Texas Medical BoardInformal Settlement Conferencephysician disciplineMon, 15 May 2017 16:36:29 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2017/05/articles/texas-medical-board/governor-abbott-appoints-six-new-members-to-the-texas-medical-board/Texas Board of Law Examiners: The Importance of Disclosure When Applying<p>Prior to being admitted to the Texas Bar, applicants must first demonstrate present good moral character. The agency in charge of making this determination, as well as ensuring applicants meet all other eligibility criteria, is the Texas Board of Law Examiners. The Board of Law Examiners, also referred to as the &ldquo;BLE,&rdquo; consists of nine attorneys appointed by the Texas Supreme Court. The ultimate decision on whether to admit an applicant to the Texas Bar rests with the Supreme Court, however, the Court places great reliance on whether an applicant has been certified by the BLE.</p>
<p>In determining whether an applicant possesses present good moral character, the Board of Law Examiners will review the individual&rsquo;s application as a whole. Past criminal offenses or disciplinary actions while an undergraduate or a law student will commonly raise character issues which result in further investigation by the BLE. Questions of moral character can also be raised by a failure to pay child support, taxes, or court judgments. Essentially, any failure to abide by the law or satisfy legal responsibilities can be viewed by the Board of Law Examiners as relevant to an applicant&rsquo;s moral character.</p>
<p>All of the above will be considered by the BLE as events bearing on an applicant&rsquo;s good moral character in and of themselves. Just as important, however, is whether the applicant is truthful and forthright in disclosing and describing these occurrences in their application and other communications with the Texas Board of Law Examiners. In fact, in my experience representing clients before the BLE, it is more often the applicant is in trouble not primarily based on their criminal history or other events from their past, but from a failure to disclose these issues or provide a forthright description.</p>
<p>In my experience, the BLE typically does not deny an applicant due to one or more misdemeanors while they were an undergraduate. The BLE may deny an applicant, or issue a public disciplinary order, if the same applicant fails to disclose their criminal history or provides a misleading description of the circumstances. If the same applicant had fully disclosed their criminal history and provided an accurate explanation of the arrests, it is very possible the Board of Law Examiners would have certified them for admission without even holding a fitness hearing.</p>
<p>The BLE&rsquo;s policy reflects the value the legal profession places on honesty, truthfulness, and candor to the court. The Board of Law Examiners does not want to admit an applicant they believe would be untruthful or less than forthright with their clients, a court, or opposing counsel. Most lawyers will encounter situations in their practice where the easy thing to do (for themselves or for their client) would be to bend the truth or stretch, if not break, the ethical rules and responsibilities every attorney has as an officer of the court and member of the Bar. Because of this, the Texas Board of Law Examiners can be hesitant to certify someone they feel has been dishonest or misleading during the application process.</p>
<p>I would urge any applicant who needs to disclose past history, or who is unsure whether something needs to be revealed, to consult with an attorney prior to submitting anything to the Texas Board of Law Examiners. Many problems can be avoided by obtaining legal consultation or representation at the start of the application process rather than waiting until a preliminary moral character determination has been made. Once made, a negative preliminary moral character determination will almost always lead to a character and fitness hearing before the Board where the applicant could be facing denial of their application or licensure but with conditions and findings they were dishonest to the BLE.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/7lPjDtVnXow" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/7lPjDtVnXow/
http://www.txmedicallicensinglaw.com/2017/03/articles/texas-board-of-law-examiners/texas-board-of-law-examiners-the-importance-of-disclosure-when-applying/Texas Board of Law ExaminersThu, 09 Mar 2017 12:42:34 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2017/03/articles/texas-board-of-law-examiners/texas-board-of-law-examiners-the-importance-of-disclosure-when-applying/Senate Bill 195 and Changes to DPS Controlled Substances Registration Requirements<p>&nbsp;</p>
<p>Some notable legislation came out of the 84<sup>th</sup> Legislative Session, at least as it relates to the practice of medicine in the state, and specifically the state&rsquo;s efforts to fight prescription abuse.&nbsp;Senate Bill 195, passed in the most recent legislative session, serves up some significant changes to the Department of Public Safety&rsquo;s (DPS) role in regulating the prescribing of controlled substances.&nbsp;</p>
<p>Effective September 1, 2016, a physician or practitioner in the state of Texas will no longer need to hold a Controlled Substances Registration (CSR) through the DPS.&nbsp;I see this as a positive change as requiring a state DPS registration alongside the federal registration already mandated by the federal Drug Enforcement Administration is redundant and unnecessary.&nbsp;Practitioner&rsquo;s will probably be happy to have one less expiration date to track, and one less fee to pay.<span>&nbsp;&nbsp; </span><span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></p>
<p>Senate Bill 195 also moves the Prescription Access Texas (PAT) electronic prescription database from one state agency to another, specifically from the DPS to the Texas State Board of Pharmacy (Pharmacy Board).&nbsp;PAT has been available for wide use since 2012.&nbsp;Most practitioners who might have occasion to use PAT, are probably aware of it at this point.&nbsp;It makes prescribing data more easily accessible to physicians, pharmacists, and law enforcement.&nbsp;The primary utility for practitioners is the ability to access a patient&rsquo;s full prescribing history and verify that patients are not receiving controlled medication from multiple sources.&nbsp;It is also useful to monitor whether the practitioner&rsquo;s own prescribing authority has been used without their knowledge.</p>
<p>So, what is going to change now that PAT is moving under the Pharmacy Board&rsquo;s operation and control?&nbsp;It appears improvements that have been considered include allowing access to prescription data from surrounding states or nationwide, creating a more user-friendly interface with increased functionality, and ensuring reliable access to the program.&nbsp;The legislature decided that the Pharmacy Board, as a healthcare agency, and an agency engaged in the regulation of filling prescriptions, is better equipped than DPS to implement those changes.&nbsp;We shall see.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/M9VKnxh7o6g" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/M9VKnxh7o6g/
http://www.txmedicallicensinglaw.com/2015/10/articles/texas-board-of-pharmacy/senate-bill-195-and-changes-to-dps-controlled-substances-registration-requirements/Drug Enforcement AdministrationTexas Board of PharmacyMon, 19 Oct 2015 17:58:16 -0600Darrin Desthttp://www.txmedicallicensinglaw.com/2015/10/articles/texas-board-of-pharmacy/senate-bill-195-and-changes-to-dps-controlled-substances-registration-requirements/Texas Medical Board Turns Its Attention to Testosterone and Hormone Replacement Therapy<p>&nbsp;</p>
<p>It should go without saying given the Texas Medical Board&rsquo;s recent aggressive regulatory stance on the treatment of chronic pain, Texas physicians involved in the practice of testosterone and hormone replacement therapy should be made aware of a discussion by the Board at a recent Board meeting regarding a U.S. Food and Drug Association (FDA) safety announcement.</p>
<p>On January 31, 2014, the FDA issued a safety announcement alerting the public the FDA was investigating the risk of stroke, heart attack, and death in men taking FDA-approved testosterone products. The FDA stated that although it had been monitoring risks related to testosterone products and decided to reassess this safety issue based on the recent publication of two separate studies suggesting an increased risk of cardiovascular events among groups of men prescribed testosterone therapy.</p>
<p>To be clear, the FDA safety announcement stressed the FDA had not concluded FDA-approved testosterone products increased the risk of stroke, heart attack, or death or that patients should stop taking prescribed testosterone products. The Texas Medical Board&rsquo;s discussions on these issues focused on relevant Board rules regarding standards for physicians practicing complementary and alternative medicine, including requirements of patient assessment, disclosure of expected outcomes, risks and benefits of treatment, a documented treatment plan with periodic review, adequate medical records, and therapeutic validity.&nbsp;The Board also discussed potential disciplinary issues with testosterone therapy which could arise with the &ldquo;off-label&rdquo; use of testosterone if the physician did not provide and obtain proper informed consent for off-label use or if the physician did not discuss the benefits weighed against possible risks of the therapy.</p>
<p>Because of the Board&rsquo;s interest in this particular topic, Texas physicians in the field of testosterone or hormone replacement need to be hyper-vigilant in keeping proper consents and documentation, and keeping apprised of the relevant Board rules.<span>&nbsp;&nbsp; The attorneys at the Leichter Law Firm have aided numerous Texas physicians to implement best practices.&nbsp;&nbsp;If the attention has shifted to you and you have an investigation or legal case pending before the Texas Medical Board, and want a knowledgeable administrative law attorney with experience working with the Board and its members, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.</span></p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/jsffkf-Nzas" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/jsffkf-Nzas/
http://www.txmedicallicensinglaw.com/2015/10/articles/texas-medical-board/texas-medical-board-turns-its-attention-to-testosterone-and-hormone-replacement-therapy/ Texas Medical Boardphysician disciplineFri, 02 Oct 2015 15:36:57 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2015/10/articles/texas-medical-board/texas-medical-board-turns-its-attention-to-testosterone-and-hormone-replacement-therapy/Texas Dental Board Offers Proposed Order Without Giving Dentists a Full Opportunity to Respond<p>&nbsp;</p>
<p>The processing of complaints filed with the State Board of Dental Examiners (&ldquo;Board&rdquo;) is governed by Chapter 255, Title 3, Occupations Code and Rules 107.00 through 107.103 of the Board&rsquo;s Rules. After deciding that the complaint involves potential violations, Board Staff has the authority to schedule an informal settlement conference, draw up a proposed board order, or file a formal complaint with the State Office of Administrative Hearings.&nbsp;As the informal settlement conference track gives the licensees an opportunity to present their mitigating or exculpatory evidence to a Board member who has the authority to resolve an investigation, such a setting is many times favorable to flesh out the facts and give the licensees a venue to clarify the issues.&nbsp;</p>
<p>Unfortunately, the more recent trend has pointed to Board Staff presenting proposed board orders to licensees in lieu of scheduling informal settlement conferences to resolve cases.&nbsp;These board orders are prepared and reviewed by Board Staff, including the dental director who is employed by the Board. &nbsp;In the proposed order Board Staff will make findings of fact and conclusion of law, and list sanctions without any input from the licensee.&nbsp;The proposed orders are sent to the licensees accompanied by a form letter stating the failure to sign the order would result in a formal complaint and a contested case hearing at the State Office of Administrative Hearings.&nbsp;Many times, licensees, without an understanding of the disciplinary process will be coerced to sign the order as the prospects of a formal hearing are daunting.&nbsp;What the dentist often does not know is they still have the right to request an informal conference and obtain a copy of all non-confidential information in Staff&rsquo;s investigative file. For these reasons, among others, licensees investigated by the Board should seriously consider hiring an attorney.</p>
<p>The attorneys at the Leichter Law Firm have extensive experience in professional licensing and administrative law and will generally help to secure better outcomes than a practitioner facing the Board alone. In the scenario explained above, we would request an informal settlement conference so that we would be better able to marshal evidence and present your case to Board Staff and a representative Board member. &nbsp;If you have received a proposed board order without having been afforded the opportunity for a face-to-face informal meeting, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/TBKkc6xqT9c" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/TBKkc6xqT9c/
http://www.txmedicallicensinglaw.com/2015/10/articles/texas-dental-board/texas-dental-board-offers-proposed-order-without-giving-dentists-a-full-opportunity-to-respond/Agreed OrderISCInformal Settlement ConferenceSBDE ProcdeureTexas Dental BoardFri, 02 Oct 2015 15:20:54 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2015/10/articles/texas-dental-board/texas-dental-board-offers-proposed-order-without-giving-dentists-a-full-opportunity-to-respond/Recent Changes to the Texas Peer Assistance Program for Nurses<p>
<p>In the past year-and-a-half there have been several changes to the Texas Peer Assistance Program for Nurses (TPAPN). First, the length of participation has been increased from two years to three years for RNs and LVNs and three to five years for nurse practitioners and CRNAs. This change brings TPAPN more in line with the other official peer assistance programs for health care professionals in Texas such as the Texas Physician Health Program and Professional Recovery Network.</p>
<p>Another important change has been the Board&rsquo;s move towards offering confidential TPAPN orders in certain cases. Previously, the Board had the option to either refer a nurse to TPAPN directly or enter a public order requiring the nurse to enroll. For cases raising moderate to severe public safety concerns or where the nurse had previously participated in TPAPN, the Board was highly unlikely to agree to a TPAPN referral without a public order. Now such cases can be settled through a non-public order accomplishing the same result. This is a good option in many cases as it allows the nurse to avoid a public order which would follow them for the rest of their careers.</p>
<p>More recently, TPAPN has initiated a new program for nurses with marginal mental health issues comparable to the Extended Evaluation Program (EEP) available to nurses who may have misused a mind-altering substance but lack a DSM-V substance abuse or chemical dependency diagnosis. Like EEP, the new mental health track is a one year commitment, confidential, and not considered to be disciplinary. Typically the participant is only required to regularly meet with their mental health provider who is expected to supply periodic status reports to TPAPN. My experience thus far has been that clients with minor mental health issues or diagnoses in long-term remission are most likely to be accepted.</p>
Given these new developments it is more important than ever for a nurse to contact an experienced attorney to discuss their options if they have been asked or are considering participation in TPAPN. The changes outlined above offer new possibilities for resolution which were not previously available. It takes a lawyer familiar with the Board and TPAPN to know what might be available to a nurse and how to navigate the system to achieve the best result. The increased length of the standard TPAPN contract makes it all the more important for a nurse to seek knowledgeable counsel rather than proceed on their own.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/RtVrsZ4Qut4" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/RtVrsZ4Qut4/
http://www.txmedicallicensinglaw.com/2014/12/articles/texas-board-of-nursing/recent-changes-to-the-texas-peer-assistance-program-for-nurses/Chemical DependencyNursePrivate OrderRehabilitation OrderSubstance AbuseTPAPNTexas Board of NursingThu, 18 Dec 2014 17:32:32 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2014/12/articles/texas-board-of-nursing/recent-changes-to-the-texas-peer-assistance-program-for-nurses/Inappropriate Referrals to the Texas Physician Health Program<p>&nbsp;</p>
<p>Since its inception several years ago, the Texas Physician Health Program has provided a valuable option for physicians suffering from chemical dependency, serious mental illness, or physical impairment. For appropriate Texas physicians, the Physician Health Program (also known by its acronym &ldquo;PHP&rdquo;) can help a practitioner set up a structured recovery or monitoring program based on recommendations by qualified medical and mental health professionals. Additionally, in most instances participation in PHP is confidential and will not be reportable to the National Practitioner Databank, hospitals, insurance networks, or other credentialing entities.</p>
<p>Unfortunately, my firm has observed an increasing number of Texas physicians referred to PHP by the Texas Medical Board for marginal issues. This includes physicians with a single DWI conviction, long stable mental health conditions, and physical conditions unlikely to affect their practice. Such a physician can quickly find themselves asked to sign a long-term participation agreement with PHP that imposes restrictions on their practice and onerous monitoring conditions. This situation is tragic as in many instances it is possible to obtain a dismissal if the physician hires an attorney and allows the Board to review their case.</p>
<p>A common scenario begins with a physician fulfilling their duty to self-report a first-time DWI or Public Intoxication conviction to the Texas Medical Board. As a follow-up, the physician will often receive a letter from the TMB stating the Board is referring their case to the Physician Health Program for evaluation in lieu of an investigation or possible disciplinary action. The physician is then typically contacted by PHP and asked to set up a meeting with the program director, also a physician, at their office in Austin, Texas. Out of an abundance of caution, PHP will then usually ask the physician to sign a participation agreement with or without further evaluation or treatment. At this juncture, many physicians will enter into the agreement out of a fear of Board action even though their case would likely be dismissed by the Board at an informal conference.</p>
<p>My firm has represented many physicians in the same and similar situations and, through skillful representation before the Medical Board, obtained a dismissal at or before an informal conference. If the issue is marginal, not supported by a diagnosis, or is an existing diagnosis in long-term remission, it is often possible to put together appropriate evidence and expert opinion, present this to the TMB, and convince the Board to dismiss the case without taking any action.</p>
<p>The Board&rsquo;s decision to refer a case to the Physician Health Program is usually reflexive and done prior to any real review of the physician&rsquo;s case and circumstances. Effective advocacy by an attorney familiar with the Board&rsquo;s process can allow a physician with a marginal issue to avoid both discipline by the Board or participation in PHP. Any physician finding themselves in this type of situation should contact an attorney to discuss their options. Evaluation and participation in the Texas Physician Health Program may be inappropriate and unnecessary.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/bihegCM0iJI" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/bihegCM0iJI/
http://www.txmedicallicensinglaw.com/2014/12/articles/texas-medical-board/inappropriate-referrals-to-the-texas-physician-health-program/ Texas Medical BoardChemical DependencyCriminal HistoryDriving While IntoxicatedForensic EvaluationPrivate OrderSubstance AbuseWed, 17 Dec 2014 17:38:36 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2014/12/articles/texas-medical-board/inappropriate-referrals-to-the-texas-physician-health-program/An Overview of the Physician Peer Review Process and the Importance of Legal Counsel<p>&nbsp;</p>
<p>A hospital peer review has the potential to seriously disrupt a physician&rsquo;s medical practice, often bringing with it a cascade of legal consequences that can devastate a health professional's practice and reputation.&nbsp;If you are a physician facing the prospect of a peer review due to allegations of unprofessional behavior or a standard of care complaint, the earlier you seek help from an experienced healthcare law attorney familiar with the peer review process, the better positioned you will be to protect yourself against these consequences.</p>
<p>An understanding of the process and its possible sequela is important for any physician faced with the prospect of a peer review. There is much more at stake for the physician than whether he or she will retain their ability to work at a particular hospital and many pitfalls which can catch the doctor unawares.</p>
<p>For example, if a physician resigns his privileges during the course of a hospital investigation, the resignation will likely result in a report to the National Practitioner Databank (&quot;Databank&quot; or &quot;NPDB&quot;) , a national clearinghouse of information regarding physician misconduct.&nbsp;A report will also be forwarded to the Texas Medical Board which will then open an investigation leading to potential disciplinary action. The NPDB report, and possible Board order, will be visible to other hospitals where the physician holds privileges, and may result in yet further investigations.&nbsp;Any attempt to move on and gain new privileges will require an explanation of the report. Finally, the NPDB report will raise questions with insurance carriers, whom may attempt to remove the physician from their provider network.</p>
<p><b>The Investigation Stage:</b></p>
<p>Broadly speaking, the peer review process takes place in two stages: an investigation followed by a fair hearing. &nbsp;The specifics of this process will be governed by the hospital's medical staff bylaws which outline any right of the physician to participate in the investigation and the procedural details of the subsequent fair hearing.</p>
<p>Investigations are typically initiated by the hospital's Medical Executive Committee (&quot;MEC&quot;) following a poor patient outcome or complaints about a physician's behavior or professional conduct. In some instances the hospital administration will also have the authority to open an investigation which will then be passed on to the MEC.</p>
<p>In cases where there is a perceived threat the physician's continued practice would pose an imminent threat to the hospital's patients or staff, the MEC may decide to immediately suspend the physician&rsquo;s privileges pending further investigation. In addition to the severe damage such a temporary suspension inflicts on a physician's practice and reputation, should such a suspension continue for more than thirty days, the hospital is required to file a report with the NPDB and Medical Board. &nbsp;&nbsp;</p>
<p>If the MEC proceeds without temporarily suspending the physician's privileges, the formal investigation process will begin and the physician will receive official written notice of the allegations. If the investigation is related to medical care, the MEC will likely send the relevant medical records out for external peer review by medical professionals in the same field as the physician. After these reviews are complete, the MEC or an investigative panel, made up of other physicians, will then interview the physician.</p>
<p>During the hospital&rsquo;s investigation, the physician&rsquo;s ability to actively defend against the allegations is usually limited. For example, the physician may be given little to no access to the relevant medical records. Likewise, the physician may not be allowed to speak with staff members who are potential witnesses to the issue under review. Additionally, the hospital will often restrict the participation of the physician's lawyer during the MEC's investigative meeting(s) even though the physician is typically asked to attend and answer questions.</p>
<p>When the investigation is concluded, the MEC will consider the evidence and make a recommendation. If the recommendation is to drop the allegations, the peer review ends. If, however, the MEC decides to modify, suspend, or revoke a physician's privileges, the physician must be timely notified in writing of the proposed action, the reasons for this recommendation, and informed their right to a fair hearing. In Texas, physicians also have the right to attempt to mediate the dispute with the MEC and hospital.</p>
<p><b>The Fair Hearing Stage:</b></p>
<p>If the physician does not agree to the MEC&rsquo;s recommendation, they may request a fair hearing.&nbsp;A fair hearing is usually conducted at the hospital before a panel of physicians who are also on the medical staff.&nbsp;Ideally, the panel should include one or more physicians in the same specialty. The panel should not include any doctor in direct economic competition with the physician being peer reviewed. &nbsp;</p>
<p>A hearing officer, normally a lawyer, will be appointed to oversee the hearing.&nbsp;The hearing officer's role is to resolve disputes between the physician and the hospital regarding the admissibility of evidence and hearing procedure and advise the hearing panel on other legal issues. &nbsp;A hearing officer should also ensure that the hearing is conducted in compliance with provisions of the Federal Health Care Quality Improvement Act (&quot;HCQIA&quot;). The HCQIA requires the hospital to provide a physician certain due process rights, and a failure on the hospital&rsquo;s part to provide these rights could result in the hospital and MEC losing its statutorily granted immunity from certain types of lawsuits.</p>
<p>&nbsp;</p><p>&nbsp;These due process rights include:</p>
<p><span>&middot;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span>Allowing representation by an attorney or other person of the physician's choice;</p>
<p><span>&middot;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span>Having a record made of the proceedings;</p>
<p><span>&middot;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span>Permitting the physician to call, examine, and cross-examine witnesses;</p>
<p><span>&middot;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span>Giving the physician an opportunity to present evidence determined to be relevant by the hearing officer, regardless of admissibility in a court of law; and</p>
<p><span>&middot;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </span></span>Allowing the physician to submit a statement at the close of the hearing</p>
<p>The medical staff bylaws may provide other procedural rights for the physician, such as limited discovery. &nbsp;After the hearing, the panel will provide its recommendation to the MEC, who can either uphold or modify the panel's recommendation. If after the fair hearing the MEC decides to proceed with a recommendation adverse to the physician's privileges, medical staff bylaws usually allow the physician to appeal the MEC&rsquo;s decision to the hospital's governing board. It is only after the governing board upholds the recommendation that the adverse action becomes final and a Databank report containing the MEC's recommendation is generated. &nbsp;</p>
<p><b>Contact a Professional:</b></p>
<p>It is important that a physician involved in a peer review quickly retain legal counsel with both experience in this process and knowledge of applicable state and federal peer review laws. Even during the preliminary investigative phase, an attorney can guide and assist the physician in his interactions with the hospital, with an eye toward a subsequent fair hearing or law suit.&nbsp;An attorney is also necessary to ensure the hospital conducts the process in accordance with state and federal laws, and preserve evidence of any infringement of the physician's rights or illegal motives behind the peer review.&nbsp;</p>
<p>Despite being called a fair hearing, this process is anything but. The medical staff bylaws are typically drafted to provide maximum advantage to the hospital and any subsequent lawsuit or appeal claiming the hospital made the wrong decision is unlikely to succeed. Texas courts have consistently held the due process rights which must be provided to a physician are minimal and the hospital's decision will not be second guessed by the judicial system. Peer review is often used as a sword in a political fight involving the medical staff and/or hospital administration with odds stacked against the physician. Even if the physician does not wish to continue practicing at the hospital, it is vital that an exit strategy be crafted protective of the doctor's interests.</p>
<p>The consequences of an adverse action on a physician's privileges will follow the physician for the rest of their career, regardless of where he or she practices. &nbsp;If you believe you are about to be the subject of a peer review, it is imperative that you contact an experienced health care law attorney immediately.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/N3JvYMvyuB0" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/N3JvYMvyuB0/
http://www.txmedicallicensinglaw.com/2014/02/articles/texas-medical-board/an-overview-of-the-physician-peer-review-process-and-the-importance-of-legal-counsel/ Texas Medical BoardPeer ReviewQuality of CareTemporary Suspension HearingsFri, 28 Feb 2014 18:07:21 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2014/02/articles/texas-medical-board/an-overview-of-the-physician-peer-review-process-and-the-importance-of-legal-counsel/Texas Department of Insurance-Division of Worker's Compensation Increases Oversight and Enforcement Actions Against Designated Doctors<p>&nbsp;</p>
<p>For the past several years the Texas Department of Insurance-Division of Worker's Compensation (TDI-DWC) has steadily increased the number of enforcement actions initiated against Designated Doctors serving the Texas worker's compensation system. The results of such enforcement actions can range widely&mdash; from a requirement that the Designated Doctor (DD) complete additional training, the payment of a sizable administrative penalty, to removal of the physician's Designated Doctor (DD) status. Most DD's are likely aware of this trend as it corresponds with broader efforts by DWC to more tightly regulate the worker's compensation process.</p>
<p>To accommodate this augmented activity the Division of Worker's Compensation's enforcement division has expanded its staff through recruitment from other state healthcare agencies, such as the Texas Medical Board. As a by-product of this hiring policy the DWC has adopted and modified many of the procedures commonly used by these other administrative bodies. This includes implementing an informal conference procedure which largely models that used by the Medical Board. Similarly, DWC Staff also frequently forward a proposed settlement agreement to a Designated Doctor prior to an informal conference or other adequate opportunity to respond to alleged deficiencies. This procedure mirrors that used by the Texas Board of Dental Examiners and Texas Board of Nursing.</p>
<p>A DD will often first become aware of a pending enforcement action through a records request from DWC's enforcement division asking for all documentation still in the DD's possession related to one or more specified patients. Alternatively, DWC will send the Designated Doctor official correspondence expressly notifying them an enforcement action has been opened, listing the matters being investigated, and ask for a response. Prior to providing a response, a Designated Doctor in receipt of such a letter from the Division of Worker's Compensation should promptly contact an experienced attorney to discuss their case and determine whether it is advisable to retain legal representation. We have seen many clients unknowingly do irreparable harm to their case by submitting a response first and only seeking legal counsel after they receive a proposed resolution from the enforcement division.</p>
<p>The DWC can initiate an enforcement action against a Designated Doctor for a broad array of different reasons, including submitting Designated Doctor's Evaluations (DDE) late, establishing a date of Maximum Medical Improvement (MMI) or Impairment Rating (IR) with which the Division's Office of the Medical Advisor disagrees, or having an Administrative Law Judge subsequently overturn the DD's findings in a hearing involving an injured worker. In fact, the kind of conduct, issues, errors, and omissions that can be considered a violation of the DWC's Rules is vast and many may seem picayune to the physician or outside observer. Regardless, the enforcement division pursues each issue zealously and makes full use of DWC's broad discretion to regulate its DD's in seeking enforcement action.</p>
<p>Any Designated Doctor who has been targeted for a possible enforcement action by DWC should immediately contact an attorney experienced in representing clients before the agency. The risks of going it alone are substantial and the DWC does not shy from removing physicians as Designated Doctors, particularly not in the overactive regulatory climate which currently prevails. My firm has been very successful in achieving successful outcomes for DD's before DWC and this includes physicians whom the enforcement division sought to have removed from the program. A vigorous rebuttal and/or remedial presentation by a lawyer experienced in advocating before the DWC can make all the difference in the final outcome.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/HgzgQN4bIXI" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/HgzgQN4bIXI/
http://www.txmedicallicensinglaw.com/2014/02/articles/texas-medical-board/texas-department-of-insurancedivision-of-workers-compensation-increases-oversight-and-enforcement-actions-against-designated-doctors/ Texas Medical BoardExclusionInformal Settlement ConferenceQuality of CareFri, 21 Feb 2014 16:41:01 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2014/02/articles/texas-medical-board/texas-department-of-insurancedivision-of-workers-compensation-increases-oversight-and-enforcement-actions-against-designated-doctors/Foreign Medical Graduates and the H-1B Visa: A Better Choice<p>&nbsp;</p>
<p>A foreign physician coming to this country to pursue his residency is often faced with two visa options.&nbsp;He is typically required to choose either a J-1 visa or an H1-B visa.&nbsp;Both of these visas are &quot;non-immigrant&quot; visas, which do not entitle the visa holder to any<i> permanent</i> status in the US.&nbsp;For most foreign medical graduates, however, the H-1B visa is a better choice for physicians wishing to remain in the US after the completion of their residencies.&nbsp;</p>
<p>From 1976 through 1990 physicians coming to the United States to provide direct patient care, including those coming to the US to do their residencies, could only come on J visas.&nbsp;While easy to obtain, J visas were particularly hard on physicians because of the 2-year foreign residence requirement - After finishing their residencies, doctors were <i>required</i> to return to their country of nationality or last residence for 2 years.&nbsp;In 1990, Congress changed the law and allowed foreign physicians, including those coming to do their residencies, to petition for H-1B visas.</p>
<p>Many residency programs prefer doctors to come on a J-1 visa because of their familiarity with this process and the fewer formalities associated with it.&nbsp;For instance, programs offering J-1 visas do not have to file a Labor Condition Application (LCA) with the Secretary of Labor.&nbsp;The LCA requires programs offering H-1B visas to make certain attestations, such as guaranteeing equal pay with similarly qualified US doctors; a violation of the LCA can leave the program exposed to fines and restrictions on employing foreign workers.&nbsp;</p>
<p>Many foreign medical graduates (FMGs) also prefer coming on a J-1 visa because of the easier United States Medical Licensing Examination (USMLE) requirements. &nbsp;J-1 foreign medical graduates need only pass USMLE I &amp; II whereas H-1B visa seekers must pass all three steps.&nbsp;Additionally, a J-1 visa typically lasts the duration of the training program, whereas H-1B visas only last three years with a one-time extension of another three years, though in certain circumstances multiple extensions may be allowed.&nbsp;<span>&nbsp;&nbsp;</span></p>
<p>Requirements for Foreign Medical Graduates (i.e. foreign citizens who went to medical school outside the United States) to obtain an H-1B visa include:</p>
<ol>
<li>Completing Steps 1, 2 <b><u>and</u></b> 3 of the USMLE;</li>
<li>Holding a license or other authorization to practice in the state of employment;</li>
<li>Demonstrating English proficiency; </li>
<li>Having an unrestricted license in a foreign state or documentation showing graduation from a&nbsp; foreign medical school.&nbsp;</li>
</ol>
<p>Though seemingly less attractive than the J-1, the H-1B offers the huge benefit of allowing the foreign medical graduate the ability to apply for an immigrant visa (green card) and remain working in the country pending the determination of the application&mdash; once an employment-based immigrant visa petition has been filed, the H-1B can be renewed until such time the petition is decided on.&nbsp;The terms of the J-1 visa on the other hand requires the FMG to return to his country of residence for at least two years before returning to the US.&nbsp;</p>
<p>In some cases, the J-1 two-year residence abroad requirement can be waived, but only by accepting employment in healthcare professional shortage areas or medically underserved areas.&nbsp;The number of waivers are very limited if granted by a state agency - 30 per state per year, making the waiver a risky proposition.&nbsp;Additionally, such a J-1 waiver only allows the FMG to transition to the H-1B visa - not directly to a green card.&nbsp;As a result, the FMG's immigration process is further delayed.&nbsp;&nbsp;Even if the foreign medical graduate on a J-1 marries a US citizen, the physician must still fulfill the two-year residence abroad requirement or obtain a waiver.<span>&nbsp;&nbsp; </span></p>
<p>Though some states, such as Texas and New York, enacted laws that neuter the H-1B's benefits, <a href="http://www.txmedicallicensinglaw.com/2012/11/articles/texas-medical-board/new-law-restricts-texas-foreign-physicians-practice-to-medically-underserved-areas/">see here</a>, the severe shortage of doctors has required those states to rethink their laws.&nbsp;In 2012 a federal appellate court struck down the New York law discriminating against foreign doctors.&nbsp;Moreover, in June 2013, Texas repealed its law requiring H1-B physicians to work in medically underserved areas such as their J-1 waiver counterparts.&nbsp;As a result of these new developments, the H-1B remains the best option for a physician to pursue residency and eventually obtain permanent status in the US.&nbsp;<span>&nbsp;&nbsp;</span></p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/Gbqk2D2N55k" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/Gbqk2D2N55k/
http://www.txmedicallicensinglaw.com/2013/11/articles/texas-medical-board/foreign-medical-graduates-and-the-h1b-visa-a-better-choice/ Texas Medical BoardWed, 06 Nov 2013 14:35:14 -0600Andre D&apos;Souzahttp://www.txmedicallicensinglaw.com/2013/11/articles/texas-medical-board/foreign-medical-graduates-and-the-h1b-visa-a-better-choice/The National Resident Matching Program and Common Problems to Avoid<p>
<p>The National Resident Matching Program (NRMP) is the non-profit, non-governmental organization that facilitates the annual &ldquo;match&rdquo; between medical students and residency programs.&nbsp;Created in 1952, it was implemented to make the process more streamlined, and initially to ease the competition between programs in filling available positions.&nbsp;While it has changed over the years, the NRMP employs a matching algorithm to match qualified students and programs together.&nbsp;Taking part in the match process requires both the program and the student to enter into a Match Participation Agreement with the NRMP that makes the NRMP&rsquo;s match a binding commitment.&nbsp;Neither the program, nor the student, can unilaterally break the match, though either party can apply for a waiver of the binding commitment if either side can demonstrate serious or extreme hardship as a result of the match.&nbsp;&nbsp;&nbsp;</p>
<p>The Match Participation Agreement also designates conduct that constitutes a violation of the agreement, and for those violations, the NRMP can impose some very serious penalties.&nbsp;For example, any incident decided to be a violation by the NRMP will result in a Final Report detailing the participant&rsquo;s transgressions, which is sent to the applicant&rsquo;s medical school, the American Board of Medical Specialties, the residency program, the Federation of State Medical Boards, and others.&nbsp;Other possible penalties include being barred from participating in future NRMP Matches for up to three years, or being barred from accepting a position with any residency program that participates in the NRMP Match.&nbsp;For medical students, the Match is just about the only game in town, especially for M.D.&rsquo;s, and a prohibition from participating in the Match, or from accepting positions in Match-associated programs, has the potential to throw a giant wrench into one&rsquo;s medical career just as it is getting started.&nbsp;</p>
<p>The best way to avoid such consequences is to avoid violations of the Match Participation Agreement, which include:&nbsp;failure to provide complete, timely and accurate information during the match process; attempts to subvert the match process; failure to accept an appointment; and <i>any other irregular behavior</i>.&nbsp;The issues that we come across most frequently are an applicant&rsquo;s alleged failure to provide complete, timely, and accurate information relating to disciplinary action that they faced at some point in their medical education.&nbsp;&nbsp; If a residency program makes a fuss about the completeness of an applicant&rsquo;s disclosures, the NRMP can use their broadly worded Agreement to initiate an investigation.&nbsp;As we stated above, the consequences can be great, including banning an applicant from the Match for a term of years (or life), or decreeing that the applicant cannot take a position with a program that participates in the Match.&nbsp;&nbsp;&nbsp;</p>
If you are a physician Match-applicant who has run afoul of the NRMP, please consider hiring an experienced healthcare law attorney to assist you.&nbsp;The consequences of NRMP sanctions can be great, especially at this formative stage in your career.&nbsp;Contact the healthcare law attorneys at the Leichter Law Firm, PC, at (512) 495-9995. <br />
<p>&nbsp;</p>
</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/4ggM_oTDgEw" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/4ggM_oTDgEw/
http://www.txmedicallicensinglaw.com/2013/11/articles/general/the-national-resident-matching-program-and-common-problems-to-avoid/GeneralMisconductphysician disciplineFri, 01 Nov 2013 16:39:42 -0600Darrin Desthttp://www.txmedicallicensinglaw.com/2013/11/articles/general/the-national-resident-matching-program-and-common-problems-to-avoid/TPAPN shifts to three-year program for LVN/RN's and five-year program for APN/CRNA's<p>
<p>Starting September 1st, 2013, the Texas Peer Assistance Program for Nurses (TPAPN) will significantly increase the length of their standard monitoring contracts. Previously an RN or LVN participant could expect to sign a two-year participation agreement while an Advanced Practice Nurse or CRNA would be asked to participate for three years. RN/LVN's and APN/CRNA's will now need to participate for three and five years, respectively. The new change applies to both nurses who enter TPAPN with or without an accompanying Board Order.</p>
<p>This policy change is probably meant to bring TPAPN more in line with the monitoring programs used by other Texas healthcare licensing agencies. For example, the Professional Recovery Network, which serves as the official peer assistance program for the Texas Pharmacy, Dental, and Veterinary Boards normally asks its participants to sign a five-year agreement. The Texas Physician Health Program also frequently makes use of a five-year agreement, although this can be much longer depending on the case.</p>
<p>While it is understandable why the Texas Board of Nursing would want to increase the standard timeframe for TPAPN participation, I have concerns as to how effective this change will be without corresponding reform of the TPAPN process. My firm has represented hundreds of nurses who have participated in TPAPN both with and without a corresponding Board Order. Many of these nurses have ended up in TPAPN even though they do not have a qualifying substance abuse, chemical dependency, or mental health issue. Usually this is due to the nurse believing they have no other option to retain their license and/or avoid action by the Board. This is oftentimes incorrect and our firm has helped numerous nurses achieve a better result.</p>
<p>This being said, for many nurses participation in TPAPN is a good option. TPAPN does provide a level of structure and direction which can be helpful to someone who is new to sobriety and just learning the tools necessary to remain abstinent. Ideally, this should be accompanied by a supportive and non-punitive atmosphere designed to assist this process. TPAPN's goal is, and should be, assisting nurses to become and stay sober while monitoring this process through objective indicators such as drug and alcohol screening and regular reports from employers and medical/mental health providers. Unfortunately, it has been my experience that many of TPAPN's rules and policies are counterproductive to these goals, lead to unnecessary referrals to the Board, and discourage potential participants from enrolling in the program.</p>
<p>Flaws with TPAPN include its policy of refusing to allow a participant to work until they have been cleared by an evaluator and passed a drug and alcohol screen. While sometimes this makes sense, oftentimes it does not as the nurse is already sober and may have been so for some time. This requirement frequently results in the nurse losing their job which significantly undermines their ability to successfully participate both from a sobriety, financial, and mental health standpoint.</p>
TPAPN also prohibits its participants from taking any medication that is potentially abusable even if it is medically indicated, validly prescribed, and completely unrelated to the reason for their participation. For example, a nurse who enrolls in TPAPN due to a history of alcohol abuse but who also has a longstanding and well documented chronic pain syndrome will be asked to discontinue all narcotics. A nurse may also be forced to discontinue psychiatric medications even though these are medically indicated and beneficial. This rule automatically disqualifies a whole range of potential participants who would otherwise be good candidates and can make compliance for existing participants extremely difficult.</p><p>
<p>This policy also causes significant hardship for participants who develop a new medical condition while enrolled in TPAPN. As an example, a previous client of the firm was discharged from TPAPN after repeatedly testing positive for narcotics. The reason for the positive tests were the client's periodic trips to the Emergency Room when he would pass a kidney stone and be given a short-term prescription to treat the accompanying severe pain. Each time the reason and prescription for the medication were clearly documented and not in dispute; However, in each instance the nurse was pulled away from work by TPAPN, often for more than a week, until he could provide a negative urine screen. He was further warned repeated instances could result in him being ejected or asked to restart the program. Not surprisingly, this is eventually exactly what occurred.</p>
<p>I see no reason why the above scenario should occur. It makes no sense from a sobriety perspective, is cruel to the participant, and places an unnecessary burden on the Nursing Board who is then forced to take on the case. Both the Professional Recovery Network and Physician Health Program allow participants to receive potentially addictive medication so long as it is medically indicated and documentation is promptly provided. In appropriate cases, they may require a consult with an addictionologist or other qualified professional to assess and monitor the need for such medication, but the decision is left to medical professionals, not a blanket policy.</p>
<p>A reform of TPAPN's policies and process to allow greater discretion on a case-by-case basis would greatly improve the program's effectiveness and success rate. It should emulate the more flexible approaches of its fellow monitoring programs in Texas, particularly as it starts to model the length of their participation agreements. Absent some of these reforms, I foresee the expanded participation window only compounding existing problems and increasing the number of nurses who fail to complete their agreements.</p>
As emphasized repeatedly throughout this blog, a nurse who has been referred to TPAPN, or who is being referred to the Board by TPAPN, should contact an attorney for a consult. Many nurses aren't aware there may be alternative options or, in the event of a Board referral, the best way to defend themselves and minimize any impact on their ability to practice. An experienced Texas Board of Nursing attorney should be able to discuss these issues and help you decide if it makes sense to retain a lawyer to defend your interests.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/INthTbwhbXI" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/INthTbwhbXI/
http://www.txmedicallicensinglaw.com/2013/09/articles/texas-board-of-nurse-examiners/tpapn-shifts-to-threeyear-program-for-lvnrns-and-fiveyear-program-for-apncrnas/ Texas Board of Nurse ExaminersChemical DependencyNurse DisciplineSubstance AbuseTPAPNFri, 13 Sep 2013 16:05:57 -0600Dan Lypehttp://www.txmedicallicensinglaw.com/2013/09/articles/texas-board-of-nurse-examiners/tpapn-shifts-to-threeyear-program-for-lvnrns-and-fiveyear-program-for-apncrnas/Possible Secondary Effects of a Temporary Suspension on a Physician's Medicare Billing Privileges and DEA Controlled Substances Registration<p>&nbsp;</p>
<p>Given the Texas Medical Board's increasing use of temporary suspension hearings it would be helpful to understand &nbsp;what repercussions those hearings entail.&nbsp;As we shall see, a temporary suspension not only affects a physician's medical license it may also affect his Medicare billing privileges and DEA controlled substances registration.&nbsp;A temporary suspension&nbsp;hearing may have been preceded by a temporary suspension <i>without notice</i>.&nbsp;A temporary suspension without notice is essentially a shoot first ask questions later proceeding.&nbsp;The Texas Medical Board first suspends the MD or DO and then later schedules a hearing pending which the physician remains unable to practice.&nbsp;While we strongly recommend that physicians always have legal representation during temporary suspension proceedings, we believe even physicians who are currently temporarily suspended may benefit from legal representation to mitigate the secondary effects.&nbsp;<span>&nbsp;&nbsp;</span></p>
<p><b>Consequences to a physician's Medicare billing privileges and DEA registration as a result of a <u>without notice</u> temporary suspension proceeding:</b></p>
<p>As a result of a temporary suspension hearing without notice, the physician's license will be suspended leaving the physician unable to practice medicine.&nbsp;However, this suspension will only be in effect until a temporary suspension <i>with notice </i>hearing.&nbsp;At this subsequent hearing a panel of the Texas Medical Board may vote to reinstate the physician's license finding that the evidence is not sufficient to continue the suspension.&nbsp;In the meanwhile, however, the practitioner may still lose his Medicare billing privileges or DEA registration because of the suspension.&nbsp;</p>
<p>A provider is required under the Medicare regulations to report &quot;any adverse legal action&quot; within 30 days.&nbsp;However, there is a good faith argument to be made that the legal action to be reported must be final and unappealable.&nbsp;A temporary suspension without notice is certainly not a final determination as there must be a subsequent temporary suspension <b><u>with notice</u></b> hearing.&nbsp;Additionally it should be noted that the suspension of a medical license is only a &quot;permissive&quot; ground for Medicare exclusion.&nbsp;The physician is not mandatorily excluded from Medicare.&nbsp;An administrative&nbsp;lawyer well versed in Medicare regulations would be helpful in avoiding this undue exclusion during a temporary suspension.</p>
<p>&nbsp;The DEA is likewise entitled to revoke a person's DEA controlled substances registration if their medical license has been suspended or revoked.&nbsp;But, as described above, the temporary suspension <i>without </i>notice is short in duration because of the required temporary suspension&nbsp;with notice hearing. &nbsp;An administrative lawyer can similarly forestall the suspension or revocation of a physician's registration based on a thorough understanding of the Medical Practice Act's temporary suspension proceedings.</p>
<p><b>Repercussions on a physician's Medicare billing privileges and DEA registration as a result of a suspension <u>with notice </u>hearing.</b></p>
<p>&nbsp;After a with-notice hearing the temporary suspension can remain in place for an extended period of time, sometimes over a year.&nbsp;At this point, both Medicare and the DEA may exercise their statutory discretion and rescind the physician's privileges.&nbsp;However, because the revocation of the physician's privileges is still not mandatory, a skilled administrative attorney can find a legal basis to maintain the practitioner's privileges.&nbsp;</p>
<p>For instance, the physician may appeal the temporary suspension to a Texas district court.&nbsp;This would prevent the temporary suspension from becoming final as it would still be subject to possible reversal.&nbsp;If a physician's case is particularly strong, he may even move to enjoin the Texas Medical Board from enforcing the temporary suspension pending a final decision. This means that the temporary suspension would no longer have effect and the physician could continue to practice medicine in the interim.&nbsp;If the physician is thus &quot;unsuspended,&quot; Medicare and the DEA lose their ability to revoke the physician's privileges on the grounds that his medical license is suspended.&nbsp;However, these agencies may still institute their own separate investigations and disciplinary proceedings against the physician to independently find grounds to revoke or refuse to renew his privileges.&nbsp;</p>
<p>A temporary suspension by the Texas Medical Board can have grave consequences for the physician's Medicare and DEA privileges.&nbsp;Physicians should retain legal representation for the temporary suspension proceedings; However, even after a temporary suspension, a physician should seek legal help from an administrative lawyer to mitigate the secondary damage such as the revocation of Medicare privileges and DEA registration.&nbsp;The lawyer must be familiar with both the Texas Medical Practice Act and the federal statutes and regulations governing Medicare and DEA privileges.&nbsp;</p>
<p>Our Leichter Law Firm physician licensing defense lawyers have exactly such experience and have been successful in obtaining injunctions against temporary suspensions and forestalling Medicare and DEA revocations.&nbsp;If you are facing temporary suspension or are suffering its aftermath please contact us at (512) 495-9995 to schedule your initial consultation.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/mZyr08h_n4A" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/mZyr08h_n4A/
http://www.txmedicallicensinglaw.com/2013/08/articles/texas-medical-board/possible-secondary-effects-of-a-temporary-suspension-on-a-physicians-medicare-billing-privileges-and-dea-controlled-substances-registration/ Texas Medical BoardDrug Enforcement AdministrationEmeregncy Suspension HearingsMedicareTemporary Suspension Hearingsphysician disciplineWed, 21 Aug 2013 14:09:47 -0600Andre D&apos;Souzahttp://www.txmedicallicensinglaw.com/2013/08/articles/texas-medical-board/possible-secondary-effects-of-a-temporary-suspension-on-a-physicians-medicare-billing-privileges-and-dea-controlled-substances-registration/The Ryan Haight Act and the Changing Face of Telemedicine<p>&nbsp;</p>
<p>The advent of telemedicine has made it possible to provide high quality medical care for underserved areas of Texas. Patients in rural areas now have the opportunity to receive care from the state&rsquo;s best physicians when before travel costs would have made it impossible. Because of the new nature of telemedicine, state and federal laws and regulations have remained in flux. It is important for any telemedicine provider to be aware of these changes to ensure they remain compliant.&nbsp;</p>
<p>One of the most significant changes to telemedicine was the passage of the Ryan Haight Act in 2008. The Act places a number of restrictions on the practice of online pharmacies and the ability of practitioner's to prescribe medications through the internet. It was named after Ryan Haight, a teenager who died of a drug overdose in 2001 from controlled substances he bought from an online pharmacy. Mr. Haight was able to procure a prescription for Vicodin online without ever meeting a doctor.</p>
<p>The Act regulates anyone who delivers, distributes, or dispenses medication by means of the internet. The Drug Enforcement Agency treats a practitioner who prescribes medication following a telemedicine evaluation as covered under the Act. Generally a practitioner is in violation of the act if he or she does not perform at least one in-person assessment of the patient before prescribing medication.</p>
<p>The Act does exempt practitioners from this requirement as long as a practitioner meets the federal definition of practicing telemedicine. A physician practicing telemedicine may prescribe controlled substances without an in-person evaluation if: (1) The patient is treated by, and physically located in a hospital or clinic which has a valid DEA registration; and (2) the telemedicine practitioner is treating the patient in the usual course of professional practice, in accordance with state law, and with a valid DEA registration. 21 USC 802(54)(A). The most important thing to note for a practitioner is that the location where the patient is being treated must be a hospital or clinic that is itself registered with the DEA.</p>
<p>The requirement that the patient be in a hospital or clinic with a DEA registration is more stringent than Texas Medical Board requirements. Under Board rules, a physical, in-person evaluation is not necessarily required to prescribe medication and there is no requirement that the hospital or clinic have a DEA registration. A physician may treat a patient solely through telemedicine as long as the physician creates a physician-patient relationship, the patient is being treated at an &ldquo;established medical&rdquo; site, e.g., a clinic or hospital, and all additional requirements are met, including the use of a qualified presenter to examine the patient. Texas law also mandates that a telemedicine provider create and maintain detailed written protocols aimed at preventing fraud and abuse as well as separate policies covering the protection of patient privacy.</p>
<p>There are a number of other special types of telemedicine that under federal law allow a practitioner to prescribe medication without an in person visit, such as practicing telemedicine while working for the Veterans Administration, or receiving a special exemption from the Attorney General. The interaction between federal law and state law in this field is complicated and changing, and made all the more complicated by the piecemeal construction of the Controlled Substances Act.</p>
<p>If you are a physician who is thinking of beginning a telemedicine practice, it is important to seek the advice of experienced counsel to ensure your practice meets all federal and state law requirements. &nbsp;The applicable law can be complex and involve overlapping mandates on both the state and federal level. In Texas the rules regarding telemedicine continue to evolve as the Texas Medical Board frequently revisits this issue, often with an eye towards making more stringent regulation. The attorneys at the Leichter Law Firm have aided numerous physicians and other providers navigate both state and federal&nbsp;telemedicine law and implement best practices to help avoid the most common problems endemic to this field. In our experience, telemedicine is a complaint rich area where seeking the advice of a qualified attorney prior to being subjected to state or federal scrutiny makes all the difference.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/7x3dpXDc6Bk" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/7x3dpXDc6Bk/
http://www.txmedicallicensinglaw.com/2013/08/articles/texas-medical-board/the-ryan-haight-act-and-the-changing-face-of-telemedicine/ Texas Medical BoardDrug Enforcement AdministrationProfessional Licensing AttorneysQuality of CareFri, 02 Aug 2013 10:26:00 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2013/08/articles/texas-medical-board/the-ryan-haight-act-and-the-changing-face-of-telemedicine/Governor Rick Perry Makes Eight Appointments to Texas Medical Board<p>&nbsp;</p>
<p>Governor Rick Perry recently made eight appointments to the Texas Medical Board.&nbsp;The Medical Board is responsible for regulating the practice of medicine through licensure, discipline, and education, and is charged with protecting the health, safety, and welfare of the public, according to the Medical Board&rsquo;s mission statement.<span>&nbsp;&nbsp; </span></p>
<p>Four of the appointments are long-standing members of the Medical Board, who have each had their tenures extended to April 13, 2019.&nbsp;These current members included:&nbsp;<b>Michael Arambula, M.D., PharmD</b>, a psychiatrist in private practice, and adjunct professor in the Department of Psychiatry at the University of Texas Health Science Center at San Antonio; <b>James Scott Holliday, D.O.</b>, of Dallas, Texas, an anesthesiologist for Pinnacle Partners in Medicine, where he is also the Vice Chairman; <b>Margaret McNeese, M.D.</b>, of Houston, Texas, Associate Dean for Admissions and Student Affairs, and professor of Pediatrics at the University of Texas Health Science Center at Houston; and <b>Timothy Webb, J.D.</b>, of Houston, who works as an attorney with Webb and Associates, and as an adjunct professor at the University of Houston Department of Health and Human Performance.&nbsp;</p>
<p><b>Devinder Bhatia, M.D.</b>, of Humble, Texas, was appointed to his first term with the Texas Medical Board.&nbsp;Dr. Devinder specializes in thoracic surgery, peripheral vascular disease, vascular surgery, cardiac surgery, and cardiac disease.&nbsp;He is also a former clinical professor at University of Texas Health Science Center in Houston.&nbsp;</p>
<p>Another new face to the Medical Board is <b>Frank Denton</b> of Conroe, Texas.&nbsp;Mr. Denton is president of a stock, bond, and real estate investment company called Denton Investment Corp.&nbsp;He was formerly a board member and small business chair of the Texas Association of Business.&nbsp;Additionally, Mr. Denton was a past Board chair of the Texas Department of Licensing and Regulation.<span>&nbsp;&nbsp;&nbsp; </span></p>
<p>The Medical Board also now includes <b>Robert B. Simonson, D.O.</b>, of Dallas, Texas.&nbsp;Dr. Simonson has practiced emergency medicine in Texas emergency rooms for about 25 years.&nbsp;He is the past president of the Physicians Emergency Care Associated and chair of the Methodist Dallas Medical Center Department of Emergency Medicine.&nbsp;He teaches at University of Texas Southwestern Medical Center and at the University of Texas Arlington School of Nursing.&nbsp;Dr. Simonson is also a board member of the American Board of Emergency Medicine.&nbsp;</p>
<p>The final appointee is <b>Karl Swann, M.D.</b>, of San Antonio, Texas.&nbsp;Dr. Swann practices neurosurgery at Neurological Associates of San Antonio.&nbsp;He is also a clinical assistant professor at the University of Texas Health Science Center at San Antonio&rsquo;s Center for Neurological Sciences, and was the past chairman of the Methodist Hospital System Department of Neurosurgery in San Antonio.&nbsp;Dr. Swann was appointed to the Texas Rehabilitation Commission in 1998, and to the Texas Health Care Information Council in 2000.<span>&nbsp;&nbsp;&nbsp;&nbsp; </span></p>
<p>If you have an investigation or legal case pending before the Texas Medical Board, and want a knowledgeable administrative law attorney, with experience working with the Board and its members, please call the attorneys at the Leichter Law Firm for a free consultation at 512-495-9995.</p>
<p>&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/ysrdxgUIiYA" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/ysrdxgUIiYA/
http://www.txmedicallicensinglaw.com/2013/07/articles/texas-medical-board/governor-rick-perry-makes-eight-appointments-to-texas-medical-board/ Texas Medical BoardFri, 12 Jul 2013 16:14:47 -0600Darrin Desthttp://www.txmedicallicensinglaw.com/2013/07/articles/texas-medical-board/governor-rick-perry-makes-eight-appointments-to-texas-medical-board/83rd Texas Legislature Makes Important Changes to Law Governing Without Notice Payment Holds on Medicaid Reimbursements<p>&nbsp;</p>
<p>Over the past few years, the number of fraud investigations and without notice Medicaid payment holds initiated by the Texas Health and Human Services Commission-Office of the Inspector General (THHSC-OIG or Commission) has risen dramatically. This has been accompanied by public outcry on the part of Medicaid providers who have been hit with indefinite payment holds based on little or no evidence, payment holds which can stay in place indefinitely while the Office of the Inspector General conducts its full, and often lengthy investigation.</p>
<p>One of the more important health care bills passed by the 83rd Texas Legislature imparts much needed revisions to the statutes governing the THHSC- Office of the Inspector General's authority to impose without notice payment holds on Medicaid providers accused of fraud. The statutory changes by the Texas Legislature reflect an intense lobbying effort by Medicaid providers to add greater transparency, clearer standards, and more robust due process to without notice payment holds.</p>
<p>Pursuant to the Patient Protection and Affordable Care Act, more colloquially known as &quot;Obamacare,&quot; states are required to withhold Medicaid payments to providers upon receipt of a &quot;credible allegation of fraud.&quot; In Texas, responsibility for civil and administrative prosecution of Medicaid fraud rests with THHSC-Office of the Inspector General. Criminal investigation and prosecution for Medicaid fraud falls on the shoulders of the Medicaid Fraud Unit of the Texas Attorney General's Office. Oftentimes both of these agencies will pursue civil and criminal legal actions in concert.</p>
<p>Prior to the passage of the recent legislation there was no statutory definition of what constituted a &quot;credible allegation of fraud,&quot; nor guidance on what kind evidence or preliminary investigation was required before the Office of the Inspector General could impose a without notice payment hold. Because of this, the THHSC-OIG was relatively unfettered in deciding when to impose a payment hold and many Medicaid providers complained this frequently resulted in payment holds being initiated based on little or no evidence of actual fraud.</p>
<p>More importantly, under the prior law a Medicaid provider who was the subject of a without notice payment hold had little to no opportunity to challenge the hold prior to the informal conference or contested case proceeding which would only occur after the completion of a full investigation by THHSC-OIG's. This full investigatory and administrative process can in many instances take one or more years.</p>
<p>Thus, even if the provider is eventually vindicated, or later settles their case through a partial repayment of the money received from Medicaid, in the interim the provider is denied all Medicaid reimbursement for ongoing care and services. For many providers, such as physician or dental practices catering to Medicaid patients, this is effectively a death sentence as they are forced to indefinitely shoulder the costs of providing care while continuing to pay overhead and satisfy payroll with only an uncertain hope of later reimbursement after their case is resolved and the payment hold removed. The new legislation remedies many of these defects by explicitly defining what constitutes a credible allegation of fraud, outlining the procedure the Commission is required to follow prior to making this determination, and affording an expedited informal conference and/or contested case hearing to a Medicaid provider who is the subject of a without notice payment hold.</p>
<p>Under the new statute distinct definitions are created for both an &quot;allegation of fraud&quot; and a &quot;credible allegation of fraud.&quot; Significantly, these definitions make clear that an allegation of fraud can only be deemed credible after a careful case-by-case review that examines all allegations, facts, and evidence; a tip to the fraud hotline, claims data analysis, provider audit, or active law enforcement investigation in-and-of-themselves do not constitute a credible fraud allegation. Although much will depend on how these new standards are implemented by the THHSC-OIG, this is a helpful development as in the past many payment holds have been based entirely on one of the above listed factors which have now been deemed insufficient in the absence of further evidence of fraud.</p>
<p>In addition to better defining what constitutes a &quot;credible allegation of fraud,&quot; and perhaps more importantly, what does not, the Texas Legislature now mandates that the Office of the Inspector General conduct a preliminary investigation prior to imposing a payment hold or proceeding to a full investigation. This preliminary investigation culminates in the generation of a report containing the underlying allegation, the evidence reviewed, the procedures used to conduct the investigation, the findings, and a determination of whether a full investigation is warranted. The revised statute also mandates that the Commission retain separate physician and dental directors who must ensure any investigative findings based on the necessity or quality of care be reviewed by a qualified expert. Although the actual impact of these provisions will largely depend on how they are implemented by the THHSC-OIG, ideally these changes will impart additional rigor to the process the Office of the Inspector General uses to screen fraud and abuse allegations for further investigation and the possible imposition of a payment hold.</p>
<p>Of greatest value, the Legislature has afforded Medicaid providers who are the subject of a without notice payment hold an expedited hearings process to either challenge this status or quickly settle their case. The new statutes mandate that the Commission include a recitation of a provider's procedural rights concurrent with notice that a payment hold has been imposed. These rights include the option to either immediately proceed to a contested case hearing at the State Office of Administrative Hearings within sixty days receipt of the notice letter or convene an informal conference with the option for a later contested case hearing should the informal conference fail to resolve their case. This development is significant as it allows the subject of a Medicaid payment hold to promptly challenge their status. Given this new check on their authority, the THHSC-Office of the Inspector General will likely spend more time building a case for fraud prior to deciding to implement a without notice payment hold.</p>
<p>Based on my experience representing Medicaid providers before the Office of the Inspector General and the Medicaid Fraud Control Unit, I view these statutory revisions as a positive step towards remedying abuses of the payment hold process. I have seen many clients devastated by a without notice payment hold due to the absence of any ready legal means to challenge this status prior to the completion of the Commission's full investigation. The new definitions and standards applicable to a preliminary investigation should also lead to more deliberation by the THHSC-OIG before the agency decides to initiate a hold.</p>
<p>If you are under investigation for Medicaid fraud or abuse by the Office of the Inspector General, it is imperative to contact an experienced attorney as soon as possible. The threat of a without notice payment hold is very real and the amount of money in controversy is typically significant. Moreover, the OIG often turns these cases over to the Medicaid Fraud Control Unit for possible criminal scrutiny. Medicaid fraud is a serious offense, carries significant prison time, and is often a career ender for a health care provider or business owner. It is crucial to find competent and experienced legal counsel at the very start of the matter as these cases have a tendency to quickly snowball and important legal rights can be unknowingly waived by the client or counsel unfamiliar with the applicable law and OIG process.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/UFEH1ZpvhQc" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/UFEH1ZpvhQc/
http://www.txmedicallicensinglaw.com/2013/06/articles/medicare-medicaid-1/83rd-texas-legislature-makes-important-changes-to-law-governing-without-notice-payment-holds-on-medicaid-reimbursements/Due ProcessMedicare & MedicaidOIGFri, 21 Jun 2013 15:43:39 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2013/06/articles/medicare-medicaid-1/83rd-texas-legislature-makes-important-changes-to-law-governing-without-notice-payment-holds-on-medicaid-reimbursements/Important Update for Texas Nurses on a Board Order: Texas Board of Nursing Starts Screening for EtG and EtS<p>&nbsp;</p>
<p>During the last month my firm has experienced an influx of calls from nurses who have tested positive for alcohol while on an Order with the Texas Board of Nursing. The consequences of testing positive for a prohibited substance, including alcohol, while under a Board Order can be quite severe. This includes an automatic temporary suspension of the nurse's license and a high likelihood that this suspension will be continued until the nurse has subsequently obtained twelve consecutive months of sobriety verified by additional random drug and alcohol testing. Moreover, from a legal perspective it is very difficult to mount an effective defense in the face of a positive test and avoid these harsh consequences.</p>
<p>The reason for the sudden increase in nurses testing positive for alcohol appears to be the Texas Board of Nursing's new decision to include testing for ethyl glucuronide (EtS) and ethly sulfate (EtS) in their screening panel. Previously, the screening company used by the Texas Board of Nursing only tested for ethanol, however, the Board recently signed a contract with a new vendor that includes both EtG and EtS screening in their panel. This is crucial as the sensitivity and detection window of EtG and EtS testing is much higher than a traditional urine ethanol screen.</p>
<p>Ethanol, or alcohol, is the primary intoxicating ingredient in alcoholic beverages. Accordingly, a person who has ingested alcohol will only test positive for ethanol as long as the alcohol remains in their system. Once it has been fully metabolized by the liver, the person will no longer test positive. Given this is a relatively quick process ethanol testing will generally only provide a 10-12 hour window in which to detect if a person has ingested alcohol. If the person has only had one or two drinks, the detection window is even shorter.</p>
<p>In contrast, EtG and EtS testing can detect even light alcohol use over a period of several days. Additionally, these tests, and the low cut-off levels used by the Board, are highly sensitive to even a small amount of alcohol ingetsion. It is also well documented that inadvertent, casual exposure to alcohol in the environment can cause a person to test positive. Sources of incidental exposure to alcohol that can cause positive results include:</p>
<ul>
<li>hand sanitizers containing alcohol;</li>
<li>foods containing trace amounts of alcohol;</li>
<li>non-alcoholic beers such as O'Doul's;</li>
<li>colognes and perfumes;</li>
<li>sustained exposure to gasoline and other chemical agents containing alcohol;</li>
<li>mouthwashes containing alcohol such as Listerine and Scope;</li>
<li>over-the-counter medications containing alcohol;</li>
<li>certain natural and herbal medications.</li>
</ul>
<p>I am unaware whether the Board has provided nurses testing pursuant to a Board Order with information concerning this new testing panel. Ideally, nurses should also be provided with a list of different substances which can inadvertently cause a positive result. For many years, nurses in the Texas Peer Assistance Program for Nurses been given this information prior to their enrollment in testing and hopefully the Board is doing or will soon be doing the same. This is also the standard of practice for the Texas Physician Health Program and the Professional Recovery Network.</p>
<p>Texas nurses testing through the Board need to be made aware that they are now being tested for EtG and EtS and receive education on how to avoid an inadvertent positive. Whether a nurse who has already tested positive can mount a legal defense is largely dependent on their test level and whether they were positive for both EtG and EtS. A low positive can be an indication of only inadvertent exposure to alcohol while a test that is positive for EtG but negative for EtS strongly suggests either a contaminated sample or the spontaneous production of ethyl glucuronide in the specimen container. In District Court actions, my firm has previously successfully challenged on these bases&nbsp;two automatic suspension orders entered against physicians by the Texas Medical Board.</p>
<p>If you have tested positive for EtG or EtS, it is prudent to contact an attorney with Board experience immediately to explore your legal options. The Board is likely to move quickly to temporarily suspend your license and time is of the essence. Even if a suspension is inevitable, oftentimes an attorney can be useful in negotiating a subsequent Order with the Board that minimizes the amount of time the nurse will be unable to practice.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/KiEXpby2bpc" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/KiEXpby2bpc/
http://www.txmedicallicensinglaw.com/2013/05/articles/texas-board-of-nurse-examiners/important-update-for-texas-nurses-on-a-board-order-texas-board-of-nursing-starts-screening-for-etg-and-ets/ Texas Board of Nurse ExaminersAlcohol TestingBoard Order ViolationsDrug TestingEmeregncy Suspension HearingsEtGEthylglucuronideNurse DisciplineTPAPNTemporary Suspension HearingsmWed, 15 May 2013 16:39:36 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2013/05/articles/texas-board-of-nurse-examiners/important-update-for-texas-nurses-on-a-board-order-texas-board-of-nursing-starts-screening-for-etg-and-ets/The Texas Intractable Pain Treatment Act And Chronic Pain<p>&nbsp;</p>
<p>Given the current aggressive regulatory climate surrounding the treatment of chronic pain, it is worthwhile to look back and understand how the applicable law developed prior to the Legislature's empowerment of the Texas Medical Board to oversee registered pain clinics in 2011. This prior law, including the Intractable Pain Treatment Act, was designed to safeguard physicians who treat chronic pain while remaining within the standard of care. It has been my experience as an attorney representing numerous physicians, mid-level providers, and pharmacies, that this prior law has largely been either forgotten or eroded to the point it no longer provides real protection to medical professionals.</p>
<p>The Intractable Pain Treatment Act (IPTA), &nbsp;separate from the Medical Practice Act, is codified at Chapter 107, Texas Occupation Code, and was intended to provide physicians with a safe harbor in prescribing controlled substances and dangerous drugs to treat pain.&nbsp;In this post we provide a background of this Act and its current relevance, or lack thereof, in the practice of medicine.&nbsp;</p>
<p>The Intractable Pain Treatment Act was passed in 1989 to deal with the problem that physicians were being disciplined by the Texas Medical Board because the Board refused to distinguish habitual users of narcotic drugs from patients with genuine medical needs.&nbsp;Prior to the passage of the IPTA, the Medical Practice Act allowed the Texas Medical Board, known at that time as the Texas Board of Medical Examiners, to discipline physicians for prescribing controlled substances or dangerous drugs to a person &quot;known to be habitual users of narcotic drugs, controlled substances, or dangerous drugs or to a person who the physician <i>should have known</i> was a habitual user of the drugs.&quot;&nbsp;This phrasing of the Medical Practice Act made patients taking opioids to alleviate genuine suffering &quot;habitual users.&quot;&nbsp;Accordingly, physicians prescribing pain medication to cancer patients were subject to disciplinary action by the Board.&nbsp;Such was the effect that physicians refused to prescribe these therapeutic drugs and hospitals refused to let physicians prescribe them on the premises.&nbsp;</p>
<p>The Intractable Pain Act of 1989 sought to rectify this basic problem by protecting physicians from Texas Medical Board discipline if they prescribed the medication for &quot;intractable pain.&quot; <span>&nbsp;&nbsp;Intractable pain is defined as pain the cause of which cannot be removed, treated, or cured.&nbsp;The IPTA also prohibited hospitals from restricting credentialed physicians from prescribing pain medications for intractable pain.&nbsp;</span></p>
<p>In 1993 the Legislature modified the Medical Practice Act to prohibit doctors from prescribing to a person who was a known &quot;abuser&quot; of controlled medications.&nbsp;In 1996 the Legislature amended the Intractable Pain Act to allow physicians to prescribe controlled medication even to such abusers as long as the medication was strictly for the management of their diagnosed pain which the physician had a duty to monitor.&nbsp;The physician was also required to document the understanding between the doctor and the patient and to consult with an addiction specialist as appropriate.&nbsp;These restrictions were only required when dealing with patients who were drug abusers or had a history of drug abuse.&nbsp;</p>
<p>In its final form the IPTA was meant to provide a safe harbor for Texas doctors who treated long-term pain provided the controlled medications they prescribed were actually for an underlying pain condition.&nbsp;This safe harbor protects physicians who treat known drug abusers for intractable pain provided they monitor the patient and consult with the appropriate mental health expert.&nbsp;Yet the protections of the safe harbor are slight; by the Act's own terms, the Texas Medical Board can still discipline physicians if they prescribe non-therapeutically or prescribe in a manner inconsistent with the public welfare.&nbsp;&nbsp;</p>
<p>The safe harbor provision provided by the Intractable Pain Treatment Act has been recognized, albeit modified, by the Board in its pain management rules codified at Chapter 170, Title 22 Texas Administrative Code.&nbsp;The rules recognize that pain treatment is a vital and integral part of the practice of medicine and that doctors should be able to treat pain using sound clinical judgment without the fear of disciplinary action from the Texas Medical Board.&nbsp;Yet, the rules go on to list several actions that should be involved in the treatment of chronic pain including the formulation of a pain management contract requiring random drug screening.</p>
<p>From the rules it is apparent that whereas the Intractable Pain Treatment Act required heightened monitoring and more rigorous documentation merely for known drug abusers, the Board's most recent rules make that standard applicable to all long-term pain management patients.&nbsp;While the rules do call themselves &quot;guidelines&quot; it should be noted that the Texas Medical Board will allow deviation from the guidelines only if the physician's rational for treatment indicates sound clinical judgment documented in the medical records.</p><p>&nbsp;</p>
<p>To conclude, the Intractable Pain Treatment Act has largely been subsumed by the Board's pain management rules codified at Title 22, Chapter 170, Texas Administrative Code.&nbsp;Whereas the IPTA was enacted to provide safe harbor to physicians prescribing long-term pain medications, the Board's rules make prescribing harder by requiring extensive documentation from physicians.&nbsp;Whereas the IPTA required monitoring and more rigorous documentation only for known drug users, the Board rules holds all patients to that standard.&nbsp;All that is left from the Intractable Treatment Act is the prohibition against hospitals from restricting the ability of a credentialed physician to prescribe and treat intractable pain.&nbsp;</p>
<p>The rule's emphasis on documentation is important as in my experience most of the chronic pain cases pursued by the Texas Medical Board in the last few years rely heavily on a strongly biased reading of the physician's medical records. When the records are sent out to the Board's confidential expert panel for examination prior to an informal conference, the reviewers invariably apply an unworkable standard of documentation and then conclude, without further evidence, that the absence of certain items means the physician is engaged in non-therapeutic prescribing of medications. &nbsp;Through this process what is at worst a documentation issue is transformed by the Board into a physician who practices outside the standard of care and may even be operating a &quot;pill mill.&quot;</p>
<p>The story of the IPTA is indicative of the back and forth history of the treatment of chronic pain in Texas. It demonstrates how the regulatory climate has consistently shifted back and forth between those in favor of broadening access to chronic pain treatment and those who view this ready availability as too broad and prone to abuse by both physicians and patients. Hopefully, the current campaign being waged by the Texas Medical Board, Drug Enforcement Administration, Texas State Board of Pharmacy and local task force will soon face substantial popular or legislative pushback. As it stands, I feel substantial damage is being done to the availability of chronic pain treatment, particularly for patients who are uninsured and not covered by Medicare, as legitimate physicians are pressured to leave this specialty by an out-of-control Texas Medical Board and Drug Enforcement Administration.</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/wTbKBjtr5rw" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/wTbKBjtr5rw/
http://www.txmedicallicensinglaw.com/2013/03/articles/texas-medical-board/the-texas-intractable-pain-treatment-act-and-chronic-pain/ Texas Medical BoardDrug Enforcement Administrationphysician disciplineMon, 11 Mar 2013 15:40:25 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2013/03/articles/texas-medical-board/the-texas-intractable-pain-treatment-act-and-chronic-pain/Texas Medical Board Schedules Wave of Temporary Suspension Hearings Targeting Pain Management Physicians and Physician Assistants<p>&nbsp;</p>
<p>As we reported earlier this month, the Drug Enforcement Administration (DEA) along with several state agencies, including the Texas Medical Board (TMB) and Texas State Board of Pharmacy (TSBP), has been increasingly active in Houston over the past few months.&nbsp;More than ever before, the joint state and federal taskforce has taken a scorched earth approach to the battle against alleged &ldquo;pill mills.&rdquo;&nbsp;The taskforce has generally shown up at clinics and pharmacies unannounced, seizing records and equipment, and demanding surrender of the practitioner&rsquo;s DEA prescribing registration.&nbsp;The practitioners targeted by this task force and these methods are not just notorious &ldquo;pill mill&rdquo; doctors and pharmacies, but also a large number of legitimate pain management physicians, physician assistants, nurse practitioners, pharmacists and pharmacies that just happen to be operating at ground zero of the war on prescription drugs.&nbsp;The net has been cast wide, and many practitioners are finding themselves in need of competent and experienced legal representation.</p>
<p><b>A Surge in Temporary Suspensions on the Horizon:</b></p>
<p>Many of the physicians or physician assistants that have any present or past association with these raided clinics are finding themselves the target of Temporary Suspension proceedings by the Texas Medical Board, based solely on their association with an alleged &ldquo;pill mill&rdquo;.&nbsp;We have received numerous calls over the last few weeks from physicians and physician assistants who have received notice of Temporary Suspension proceedings and are seeking the services of professional license defense lawyers.&nbsp;The Texas Secretary of State&rsquo;s website currently lists eight Temporary Suspension hearings to be heard by the Medical Board just next week.&nbsp;</p>
<p>Temporary Suspension proceedings are initiated when Medical Board staff believes they have evidence sufficient to prove that the licensee&rsquo;s continued practice constitutes a continuing threat to the public welfare (See Occupations Code, Section 164.059(b)).&nbsp;If after a Temporary Suspension hearing, the Disciplinary Panel, made up of Medical Board members, decides that Medical Board staff has indeed presented evidence sufficient to prove that the licensee constitutes a continuing threat, then that licensee&rsquo;s license is suspended that very day.&nbsp;As such, there is a great deal at stake for any licensee that finds themselves in that position, and the benefit of hiring an attorney well-versed in medical license defense should be clear.&nbsp;</p>
<p>The Board&rsquo;s Temporary Suspension remedy has traditionally been used sparingly, due to its severe impact on a licensee&rsquo;s career, and due to the sizeable burden that Medical Board staff shoulders in proving that a licensee is a continuing threat to public welfare.&nbsp;The wave of Temporary Suspensions that the Board currently has scheduled represents a significant departure from that thinking.&nbsp;The commonalities in these cases are that the practitioners have some connection, either present or past, with a pain management clinic that has been targeted by the DEA taskforce.&nbsp;The licensee may be a physician who was serving as a part-time supervising physician or medical director.&nbsp;The licensee may be a physician assistant that worked in the clinic on a contract basis.&nbsp;Whatever the association, Medical Board staff&rsquo;s theory of prosecution equates any association with an alleged &ldquo;pill mill&rdquo; to a continuing threat to the public, and often the evidence that they are using to show a continuing threat is equally as thin.&nbsp;However, if a licensee is not equipped to challenge Medical Board staff&rsquo;s evidence and legal theories, it is likely that the Medical Board panel will find with Board staff.&nbsp;</p>
<p><b>What should you do if you receive notice of a Temporary Suspension hearing?</b></p>
<p>You should hire an attorney immediately upon being noticed of a Temporary Suspension hearing in front of the Texas Medical Board for several reasons. <span>&nbsp;&nbsp;</span></p>
<p>First, you are most likely not equipped to represent yourself in a contested hearing in front of the Texas Medical Board.&nbsp;The disciplinary process at the Board is not intuitive and Temporary Suspension proceedings are particularly quirky.&nbsp;It is to your benefit to hire someone that is capable of putting on a cohesive defense that will include preparing and presenting documentary evidence, putting on witness testimony, cross-examining Board staff&rsquo;s witnesses, and zealously advocating on your behalf.&nbsp;</p>
<p>Second, the Medical Board is only required to give you 10-days notice by Board rule (Texas Administrative Code, Title 22, Chapter 187.60(2)).&nbsp;This is a very limited amount of time to put together a strong and comprehensive defense.&nbsp;The best way to combat this challenge is to hire a lawyer that is capable of preparing a defense under these conditions, and to hire them immediately, so as to not waste time.&nbsp;</p>
<p>Third and finally, you should seek legal counsel and potentially hire an attorney because there is a great deal at stake with a Temporary Suspension hearing.&nbsp;It is nothing to be taken lightly.&nbsp;Your ability to practice under your license in the short term is in jeopardy, as is your future practice.&nbsp;A temporary suspension is on your public record forever, and its existence will definitely require explanation, and could potentially cost you opportunities in the future.&nbsp;<span>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</span></p>
<p><b>Conclusion:</b></p>
<p>If you receive a visit from the DEA taskforce or you are given notice of a Temporary Suspension hearing from the Texas Medical Board or Texas State Board of Pharmacy, please do not hesitate to contact the professional medical license defense attorneys at the Leichter Law Firm.&nbsp;You need the guidance of an attorney that is experienced in medical licensing law, including cases dealing with allegations of non-therapeutic prescribing and prescription drug diversion, as well as the potential criminal ramifications.&nbsp;The Leichter Law Firm&rsquo;s attorneys have represented clients in similar circumstances and have gained positive results for our clients.&nbsp;Give us a call at (512) 495-9995 or submit an inquiry through our website at <a href="http://www.leichterlaw.com/"><font color="#0000ff">http://www.leichterlaw.com/</font></a> for a free consultation.&nbsp;</p><img src="http://feeds.feedburner.com/~r/TexasMedicalLicensingLawBlog/~4/vv1BQnrknJs" height="1" width="1" alt=""/>http://feeds.lexblog.com/~r/TexasMedicalLicensingLawBlog/~3/vv1BQnrknJs/
http://www.txmedicallicensinglaw.com/2012/11/articles/texas-medical-board/texas-medical-board-schedules-wave-of-temporary-suspension-hearings-targeting-pain-management-physicians-and-physician-assistants/ Texas Medical BoardDrug Enforcement AdministrationEmeregncy Suspension HearingsTemporary Suspension Hearingsphysician disciplineWed, 28 Nov 2012 17:25:07 -0600Louis Leichterhttp://www.txmedicallicensinglaw.com/2012/11/articles/texas-medical-board/texas-medical-board-schedules-wave-of-temporary-suspension-hearings-targeting-pain-management-physicians-and-physician-assistants/